Brennan Center for Justice

at New York University School of Law

120 Broadway
Suite 1750
New York, New York 10271
646.292.8310 Fax 212.463.7308
www.brennancenter.org

Congressional Black Caucus

FBI Black Identity Extremist Assessment Panel Discussion: March 20, 2018

The FBI’s Governing Authorities:

• Attorney General Guidelines for Domestic FBI Operations require that

investigations not be based solely on First Amendment activities.

1. Extremely low standard. For the FBI, the BIE assessment may be intended to
provide the necessary additional element to authorize an investigation.

2. AGG allows FBI agents to conduct a type of investigation called an

“assessment” which requires no factual predicate to suggest the target of the
assessment is engaged in wrongdoing.

3. AGG allows FBI to conduct an assessment of individuals to find derogatory

information that could be used to coerce them into becoming FBI informants.

4. Next stage of investigation, a Preliminary Investigation, requires only

“information or an allegation” that the person or organization poses a threat.
According to the DOJ Inspector General, the FBI agents can make the
necessary accusation based on their speculative belief a crime may be
committed in the future.

5. FBI Domestic Investigations and Operations Guide implements AGG.

-Authorizes an assessment activity called Domain Management.

-Domain Management includes Racial and Ethnic Mapping program and
the collection of data on racial and ethnic behaviors and facilities.

• Department of Justice Guidance for Federal Law Enforcement Regarding Their

Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or
Gender Identity states that the constitution only requires that these characteristics
cannot be sole basis for a law enforcement action.

1. It adds requirement that the LE officer believes use of the characteristic is

reasonable in the totality of the circumstances. Requires trustworthy
 information, relevant to the locality or time frame, that links persons
possessing a particular listed characteristic to an identified criminal incident,
scheme, or organization, a threat to national or homeland security, a violation
of Federal immigration law, or an authorized intelligence activity. Under the
FBI’s rules, BIE assessment may provide the necessary “trustworthy
information” that identifies a scheme, organization, or threat.

2. The 2014 Guidance explicitly authorizes FBI racial mapping program.

Policy Recommendations

• Withdraw and denounce BIE report and any other intelligence assessments or training
Require the FBI to withdraw and denounce BIE report and any other intelligence
assessments or training materials referencing BIE as a category of domestic terrorists.

• Require independent review of FBI intelligence and training materials regarding

investigation, surveillance, and intelligence gathering that targets protected classes,
modeled after its review of anti-Muslim training materials in 2012.

• Establish a peer review system to oversee the production of intelligence reports and
training materials that include the FBI Office of General Counsel, DOJ Privacy
Officer, and DOJ Civil Rights Division prior to publication (DHS already does this).

• Require all intelligence and training products to be available for congressional

review, with all personally identifiable information (PII) properly redacted.

• End the FBI’s racial and ethnic mapping program.

• Pass the Ending Racial Profiling Act.

• According to 2016 data, the FBI is 83.4% white and 80% male. Congress should
order an independent study to determine why diversity gains throughout the 1990s
have fallen over the last 18 years. It should examine bias in hiring, promotion, and
disciplinary processes.

For additional information, please contact:

Michael German
Fellow, Brennan Center for Justice at New York University Law School
Program on Liberty and National Security
michael.german@nyu.edu
Telephone (646)292-8310